PRADEEP NANDRAJOG, J.

( 1 ) THOUGH captioned as a suit for specific performance of contract, plaintiff prays for a decree in sum of Rs. 32,27,102. 56 (Rupees thirty Two Lakhs, Twenty Seven Thousand one Hundred Two and Paise Fifty Six only), with further prayer that personal belongings, official papers tools etc. illegally with-held by the defendant be directed to be released.

( 2 ) AS per plaint, defendant issued a Work order dated 3. 12. 1992 to the plaintiff, duly accepted by the plaintiff. Plaintiff commenced the work as per said Work Order. By letter dated 7. 5. 1993 additional work was a warded on same terms as the Work Order. Plaintiff was to supply manpower and use his own tools and tackles for executing the work, being fabrication of pipes after cutting metal plates and welding them, earthwork channels, laying and fitting the pipes and completing finishing work for reinforcement (civil work ). Plaintiff claims to have done work and raised bills in sum of Rs. 56,75,340. 05 for works as per work order dated 3. 2. 19092. it is stated that plaintiff received payment in sum of rs. 24,83,014. 00. Sum of Rs. 31,92,326. 05 is stated to be outstanding. For additional works awarded vide letter dated 7. 5. 1993 it is pleaded that a sum of Rs. 34,776. 51 remains outstanding. In this manner, plaintiff states that it is entitled to a decree in sum of rs. 32,27,102. 56.

( 3 ) IT is stated that on 5. 11. 1993 entry of plaintiff and his labour was prohibited at site and all equipment of the plaintiff Is lying at site.

( 4 ) IT may be noted that no particulars of tools and tackles at site have been stated. No evidence has been led by plaintiff on this aspect, save and except, a reiteration of the bald statement that tools and tackles were at site when entry was prohibited. At the hearing held on 1. 2. 2005, Mr. Sandeep Sethi, learned senior Counsel stated that plaintiff restricts prayer for recovery of money.

( 5 ) IN the written statement, defendant, while admitting having awarded work to the plaintiff vide work order dated 3. 12,1992 and additional work vide letter dated 7. 5. 1993 has pleaded that its consultant had verified bills of the plaintiff in sum of Rs. 54. 68 lacs, 5% of said amount amounting to Rs. 2. 73 lacs was retained as per retention clause of the Work Order (clause 25a ). Out of balance amount of Rs. 51. 95 lacs, a sum of Rs. 49. 94 lacs was paid. Since some chargeable and consumable items other than electrodes were supplied by it to the plaintiff and payments were made to other contractors on behalf of the plaintiff, no amount was payable and on the contrary Rs. 5. 65 lacs was paid in excess. It is pleaded that there is a penalty clause in the agreement. It is also pleaded that plaintiff did not complete the works.

( 6 ) VIDE order dated 16. 1. 2001, following issues were framed:-

"1. Whether a total sum of rs. 24,83,014/- only was paid by the defendant to the plaintiff against the first eleven running account bills totaling to an amount of Rs. 56,75,340. 05 raised by the plaintiff although the bills to the extent of nearly Rs. 51 lakhs were accepted and passed by the PDIL and bacl (consultants and owners)? OPP

2. WHETHER the defendant did not raise any objection with respect of any one of the running account bills submitted by the plaintiff? OPP

3. Whether, in the circumstances, the defendant is liable to pay the alleged outstanding amount of Rs. 31,92,326. 05 with interest thereon against the said first eleven running account bills? If so, at what rate of interest? OPP

4. Whether the defendant has committed breach of its contractual obligation by not paying the alleged outstanding amount till date? OPP

5. Whether the defendant failed to provide the necessary erection material for underground piping job like pipes, fittings, flanges, etc at the proper time as per the terms of work order? If so, whether the plaintiff has consequently suffered idle labour charges and other consequential losses by the negligence of defendan

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